Lawyers for Marathon bombing suspect can’t photograph client

U.S. Magistrate Judge Marianne B. Bowler has ruled that lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev may not photograph their client at the Fort Devens prison facility where he is being detained.

Instead, Bowler ruled that prison staff can take photos of the defendant with his counsel present.

In a sealed ex parte motion, lawyers for Tsarnaev requested a court order compelling the Federal Bureau of Prisons to allow them to take “current and periodic photographs” of their client. The defendant argued that his “injuries over time” provide evidence of “his evolving mental and physical state,” which, in turn, is probative of “the voluntariness of [his] statements and sentence mitigation arguments.”

Tsarnaev claimed that his Sixth Amendment right to effective assistance of counsel, which includes an obligation of counsel to conduct an adequate investigation, trumps the policy at the prison prohibiting the use by a visitor, including a pre-trial detainee’s attorney, of a camera.

But Bowler disagreed, finding that her proposed alternative was constitutionally sufficient.

“This reasonable accommodation adequately addresses the defendant’s need to document the defendant’s condition,” she wrote. “The defendant also fails in his burden of showing that future photographs taken by a BOP staff member are protected by the work product doctrine and therefore cannot be produced to the government.”